Page 1
Court of Appeal:
Pseudonyms for Witnesses Did Not Violate Due Process
Denial of Challenge to University Disciplinary Hearing Upheld Despite Trend to Require More Trial-Like Proceedings; Rothschild Says Credibility of Accusers Wasn’t in Issue
By Kimber Cooley, Staff Writer
Div. One of this district’s Court of Appeal held yesterday that there is no blanket right to cross examination, confrontation, or witness identity disclosure in student disciplinary proceedings where credibility of the witnesses is not central to the action, despite a recent trend in case law providing that the names and expected testimony of adverse witnesses must be provided in such actions relating to sexual misconduct.
Presiding Justice Frances Rothschild wrote the unpublished opinion affirming the denial by then-Los Angeles Superior Court Judge Mitchell L. Beckloff (now a mediator/arbitrator) of a petition for writ of administrative mandate challenging the expulsion of two students from the University of California, Riverside. Justices Victoria Gerrard Chaney and Gregory J. Weingart joined in the opinion.
Challenging the denial were Chad Ayach and Joseph Nofal who were expelled from the university in 2019 following an investigation into alleged hazing practices of their fraternity, Phi Gamma Delta (“PGD”). Prior to expulsion, Nofal was PGD’s chapter president for the campus and Ayach was acting as the “disciplinarian” for the chapter’s pledge campaign.
Notice of Charges
In April 2019, both students received notice from the school’s Student Conduct and Academic Integrity Program Office (“SCAIP”) requiring them to appear for an administrative hearing due to reports that the fraternity was engaging in hazing activities in violation of university rules.
Specifically cited were accusations of mock kidnapping, the sale of pledges at a date auction, and an incident in which one student is alleged to have used a taser on another, triggering the wellness check that ultimately opened the investigation into PGD.
After administrative appeals were denied as to each student, Ayach and Nofal filed a petition challenging their expulsion on due process grounds, specifically arguing that the redaction or use of pseudonyms in the university’s charging documents prevented them from a meaningful investigation of the charges and denied them the ability to confront and cross-examine the unidentified witnesses, who did not testify at the hearing.
No Blanket Right
Rothschild noted that student disciplinary hearings need not meet the standards for a judicial hearing, but the “essential requirements of due process in this context” must give the student notice of the charges against them and the full opportunity to present defenses at a hearing.
Ayach and Nofal argued they were each denied the opportunity to present a full defense and point to cases holding that a student accused of sexual misconduct does not receive a fair disciplinary hearing when the university or college fails to provide the identities of adverse witnesses.
Rothschild was not persuaded. She said the cases upon which the appellants rely do reflect a trend toward use of procedures in student disciplinary proceedings where “unlike here” there are allegations of sexual misconduct and the credibility of a complaining witness is in issue.
“Crucially for our purposes, these cases expressly limit their holdings to these unique circumstances,” the presiding justice wrote.
Reasoning that “these requirements make sense in the context of sexual assault allegations” because most of such cases turn on credibility, she said:
“This concern does not apply here. Nofal and Ayach were not accused of sexual misconduct, nor does the adjudication of the allegations against them depend on the credibility of adverse witnesses….Nofal and Ayach did not argue to the committee that these witnesses were lying or were mistaken; rather, they argued that the conduct they were describing—most of which…Nofal and Ayach admitted occurred—did not violate university policies or was not a basis for imposing discipline on Nofal and Ayach specifically.”
Rothschild declared:
“Thus, that the sexual misconduct cases Nofal and Ayach cite may require a university to disclose the names of witnesses or to present them at a hearing for cross-examination is not a basis for requiring the same procedures for Nofal’s and Ayach’s hearings.”
Meaningful Defense
The jurist turned to the hearings in question and said:
“Having concluded that there is no blanket right to cross examination, confrontation, or witness identity disclosure in all student disciplinary proceedings, we must assess the fairness of Ayach’s and Nofal’s hearings.”
She continued:
“Inherent in this analysis is that the challenged aspects of the hearing—lack of cross-examination, lack of witness confrontation, and the use of pseudonyms in the description of witness statements—prejudiced Nofal’s and Ayach’s ability to present a meaningful defense.”
Noting that due process requires an accused student to be told what he or she is accused of doing and the basis of the accusation, Rothschild nonetheless found no due process violation in the present case, explaining:
“[T]he University’s decision not to identify these witnesses by name or present live testimony at the hearings [did not] keep Nofal and Ayach in the dark as to the nature of the witnesses’ statements or the details of the conduct they described. SCAIP described this conduct via the master packet and in the notices Nofal and Ayach received before the hearings….
“Finally, Ayach’s and Nofal’s statements reflect that they knew the identities of some of the witnesses, yet nothing in the record suggests either attempted to call these individuals to testify nor do they even here contend that any such individual refused to appear. Nor did Ayach or Nofal request the names of any of the witnesses they did not know….This underscores that not speaking with or cross-examining these individuals did not meaningfully limit Nofal’s and Ayach’s ability to present their defenses….”
The case is Ayach v. The Regents of the University of California, B325545.
Copyright 2024, Metropolitan News Company